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Parent Issues in both Special and General
Education
ICASE Fall 2015
School Law: Definitions of Parents, Custodian and Guardian
• Article 7 definition • Homeless under McKinney‐Vento• Legal settlement• Records request• DCS interviews
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Article 7
• Parent =• Any biological or adoptive parent whose rights not terminated or restricted
• Guardian• Foster parent• Individual with legal custody or other adult with whom student lives
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Educational Surrogate
• When no parent can be identified• When no parent can be located• Ward of the State unless court order specifies otherwise
• Homeless
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Special Education and Parents
• The IDEA grants the parents of children with disabilities the right to participate in decisions about their children's placement. 34 CFR 300.116(a)(1); 34 CFR 300.327 ; 34 CFR 300.501 (c); and 71 Fed. Reg. 46,585 (2006).
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Scheduling
• A district can conduct an IEP team meeting without a parent in attendance when the district "is unable to convince the parents that they should attend." 34 CFR 300.322 (d). See Board of Educ. of the Toledo City Sch. Dist. v. Horen, 55 IDELR 102 (N.D. Ohio 2010), aff'd, 113 LRP 45713 (6th Cir. 2011, unpublished).
• What process:• Detailed records of telephone calls made or attempted and the results of those calls;
• Copies of correspondence sent to the parents and any responses received; and
• Detailed records of visits made to the parents' home or place of employment and the results of those visits.
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Scheduling: Complaint Findings
These Findings show that the School maintained electronic records of the email communications with the Complainant, demonstrating the School’s efforts to schedule the initial CCC meeting at a mutually convenient date, time and place. This record‐keeping satisfies the requirement of 511 IAC 7‐42‐2(b), which allows a school to conduct a CCC meeting without a parent in attendance, if the parent chooses not to attend, so long as the school maintains a detailed record of the attempts to arrange a mutually agreed upon date , time, and place for the CCC. Thus, no violation of 511 IAC 7‐42‐2(a) is found.
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ACR dates vs. Annual meetingSee CP‐076‐2014
• On January 15, 2014, the School emailed the Complainant asking if the Student’s annual case review (ACR) could be scheduled for February 10, 2014, in order to meet a February 12, 2014 deadline. The School emailed the Complainant again on January 27, 2014, asking about scheduling the ACR on February 10th. The Complainant responded “I do not believe this is correct as we had a case conference at the beginning of the school year” and I asked that it be discussed at the team meeting scheduled for February 3, 2014.
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Alternative Methods of “Meeting”
• "When conducting IEP Team meetings and placement meetings ..., and carrying out administrative matters under [20 USC 1415 ] (such as scheduling, exchange of witness lists, and status conferences), the parent of a child with a disability and a public agency may agree to use alternative means of meeting participation, such as video conferences and conference calls." 34 CFR 300.328. See Houston Indep. Sch. Dist., 42 IDELR 128(SEA TX 2004) (holding that since the mother was unavailable to attend the student's first and second IEP meeting, the district's use of a telephone conference for a parent complied with the IDEA).
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Recording of Meetings and Interpreters
• The IDEA requires districts to take "whatever action is necessary to ensure that the parent understands the proceedings of the IEP team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English." 34 CFR 300.322 (e).
• Parents may record IEP meetings to the extent permitted by state law and the district. Districts must make exceptions that are necessary to ensure that the parent understands the IEP and the IEP process. Letter to Anonymous, 40 IDELR 70 (OSEP 2003). See also Horen v. Board of Educ. of City of Toledo Pub. Sch. Dist., 53 IDELR 79 (N.D. Ohio 2009), aff'd,113 LRP 45713 (6th Cir. 2011, unpublished); SmartStart: IEPs ‐‐ Documenting the Proceedings.
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Recording ‐ continued
• OSEP has advised that subject to 34 CFR 300.322(e), an SEA or public agency has the option to require, prohibit, limit, or otherwise regulate the use of recording devices at IEP meetings.
• If a public agency or SEA has a policy that limits or prohibits the use of recording devices at IEP meetings, however, the policy must provide for exceptions that ensure that a parent understands the IEP or IEP process. Letter to Anonymous, 40 IDELR 70 (OSEP 2003).
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Choice of Personnel
• Parents are not entitled to choose teachers or other instructional personnel who will attend the meeting. Although districts may choose to let the child's multidisciplinary (placement) team make such decisions, the IDEA permits districts to treat these matters as administrative decisions, which are made by school personnel. Letter to Wessels, 16 IDELR 735 (OSEP 1990).
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Evaluations
• The IDEA expects parents of children with disabilities to have a role in the evaluation and educational placement of their child. However, there is no statutory or regulatory authority that provides parents with an entitlement for either them or their professional representative to observe their child in the classroom or in a proposed educational placement. Letter to Mamas, 42 IDELR 10 (OSEP 2004). See also Manatee County Sch. Dist., 51 IDELR 289 (SEA FL 2008), aff'd, 53 IDELR 149 (M.D. Fla. 2009); and In re: Student with a Disability, 51 IDELR 291 (SEA NY 2008).
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Placement Decisions
• While parental preference may be one factor that is considered in determining the overall outcome with respect to placement, it is not the predominant or overriding force in making a final placement decision or deciding any matters that individually comprise placement. Letter to Bina, 18 IDELR 582 (OSERS 1991).
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Location Decisions
• Once the placement team decides the type of placement appropriate to meet the student's needs, the placement team may delegate the classroom assignment to the school administration.
• However, that determination must be consistent with the placement team's decision about the appropriate educational setting for the student. See Letter to Fisher, 21 IDELR 992 (OSEP 1994); and Letter to Wessels, 16 IDELR 735 (OSEP 1990).
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Retention
IC 20‐32‐8‐11Any decisions with regard to:1) Attendance in a remediation program2) ISTEP program testing and3) Grade level placementFor a student who is a child with a disability, shall be made in accordance with the IEP
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Signing the IEP
• There is nothing in the IDEA that requires IEP members to sign an IEP.
• The Education Department expressly rejected requests to add such a requirement in the 2006 IDEA Part B regulations.
• In the comments to the 2006 IDEA Part B regulations, the ED said it believed "it would be overly burdensome to impose such a requirement." 71 Fed. Reg. 46,682 (2006).
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Signing the IEP ‐ continued
• Since this document as it appears in the record is not signed by Plaintiff, we are unable to determine conclusively whether she received and reviewed it.
• Nonetheless, the record is insufficient for us to foreclose the possibility that, despite providing advance information of the existence of a procedural safeguards notice, the district failed to follow through and deliver it.
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Stalemate
• A parent who does not agree with a placement decision can dispute the placement through the various avenues afforded under the IDEA. See Letter to Coleman, 211 IDELR 269 (OSEP 1981).
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511 IAC 7‐42‐8
• Not later than 10‐instructional days after initial IEP consent
• On 11th instructional day unless:A) Request and Participate in a MeetingB) Mediation C) Due Process
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Church Church Hittle & Antrim (c) 2011
Marshall Sch. Dist. v. C.D. (7th Cir. Aug. 2, 2010) • A student suffering from Ehlers‐Danlos Syndrome (EDS) was not eligible for special education services IDEA because his medical condition did not adversely affect his educational performance. See Tab “E”.
• "It is not whether something, when considered in the abstract, can, but whether in reality, it does, adversely affect a student’s educational performance."
• “…his needs could be met in a regular education setting with some slight modifications for his medical and safety needs."
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Church Church Hittle & Antrim (c) 2011
Marshall Sch. Dist. v. C.D. (7th Cir. Aug. 2, 2010)• "physicians cannot simply prescribe special education for a student"
• "his needs could be addressed by allowing him to participate in regular gym with a health plan.”
• He was performing at grade level and had made huge personal gains over previous years.
• OT and PT not necessary under IDEA. The statute is "perfectly clear on this point: if a child has a health problem ‘but only needs a related service and not special education, the child is not a child with a disability.’"
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Parent Participation• M.B. v. HAMILTON SOUTHEASTERN SCHOOLS and HAMILTON‐BOONE‐MADISON SPECIAL SERVICES (S.D. Ind. Aug 2010)
• The school's Special Education Director tried communicating with the parents but they responded that, on the advice of counsel, they would not participate in any CCC meeting.
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Parent Participation ‐ continued
• “By refusing to participate in further conferences and unilaterally removing M.B. from his placement with Defendants, the parents eliminated the school's ability to make any such adjustments.”
• “Plaintiffs were not well served by their decision to stop interacting with the CCC. Continued monitoring and conferences may or may not have been able to convince the Defendants to alter their decision with regard to duplicative Kindergarten sessions for M.B.”
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Last Best Offer• If there is no last, best offer ‐‐ that is, if the parents have initiated the adversary process in advance of the development of a final IEP ‐‐ it makes very little sense to consider only the latest version of the IEP. This is especially true where the school system has acted expeditiously and the development of a final IEP has been frustrated by the parents' refusal to cooperate fully in the collaborative process. See Loren F. v. Atlanta Indep. Sch. Sys., 349 F.3d1309, 1312 (11th Cir. 2003); MM v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 535 (4th Cir. 2002).
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Last Best Offer ‐ continued
• In such circumstances, it would be wrong to put blinders on a reviewing court and restrict its inquiry to the partially completed IEP.
• Warning that courts ought not to allow parents to prevail when the inadequacy of an IEP was "created by their own obstructionism.”
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SCHOOL FLEXIBILITY
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School Flexibility
• French by French v. New York State• Parent repeatedly rejected IEP even after they provided input.
• The school exhibited flexibility and willingness to implement parent recommendations.
• Fort Osage R‐I School District v. Sims (W.D. Mo. 2010).
• School allowed meaningful input by showing changes were made in their DRAFT IEP.
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Parent Hostility
• In Richard Paul E. v. Plainfield Community Consolidated School District 202, 52 IDELR 130 (N.D. Ill. 2009), the U.S. District Court, Northern District of Illinois held that a district adequately considered the guardian's hostility toward a public middle school before deciding to continue the student's placement. See also Maine Sch. Admin. Dist. #6, 109 LRP 422 (SEA ME 08/15/08) (finding that the mother's hostility toward the student's teacher did not require the district to offer an outside or inappropriate placement), aff'd, 109 LRP 67566 (D. Me. 02/10/09); and College Station Indep. Sch. Dist., 1 ECLPR 239 , 1 LRP 9590 (SEA TX 1992)
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CUSTODIAL ISSUES
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Custody• In Indiana there are two types of Custody.
• Legal Custody: the authority and responsibility for major decisions concerning upbringing – education, health care and religion
• Physical Custody: where the child lives the majority of the time
• Parents can have joint or sole custody
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How is Custody Determined?
• Paternity Situation: A Custody determination is made either by (1) Statute; (2) Agreement by the Parties or (3) Trial by Judge.
• Divorce Situation: A Custody determination is made either by (1) Agreement by the Parties or (2) Trial by Judge.
• These are Court Orders – look for a Judge’s signature.
• Major Difference: In a paternity action, the biological mother of a child born out of wedlock has sole legal custody unless a statute, or court order, provides otherwise. In Divorce, neither parent starts out with a presumption of custody.
• Caveat: 4D Court.
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Why is the School Involved?
• The Court shall determine custody in accordance with the Best Interest of the Child StandardA. Age and Sex of the ChildB. Wishes of the Child’s Parent or ParentsC. Wishes of the ChildD. Interaction and Interrelationship of Child with
Parents/Siblings/OthersE. Child’s Adjustment to Home/School/CommunityF. Mental and Physical Health of Child, Parent and OthersG. Evidence of a Pattern of Family ViolenceH. Evidence that Child has been cared for by de facto
Custodian34
Protective Orders or Other Limiting Provisions
• Is there a Protective Order in place limiting a parent’s access to the child (or school)?
• Look to the parent to provide a copy of the PO.• Check https://mycourts.in.gov/porp (does not provide specific details).
• Is there an Order from the Court limiting a parent’s access to the child (or school)?
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Custodial Relationships
• Unless specifically designated under a court order, the school corporation should defer to the court system for interpretation.
• Hypo #1: Girlfriend of father picking up student.• Hypo #2: Dad and Mom disagree on placement.
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Form IForm I is utilized when the student is residing with a parent. Where the student’s mother and father are divorced or separated, the legal settlement of the student is the school corporation whose attendance area contains the residence of the parent with whom the student is living, in the following situations:
1. Where no court order has been made establishing the custody of the student.
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Form I ‐ Continued
2. Where both parents have agreed on the parent with whom the student will live, including the following situations:a. There is no court order establishing custody.b. There is a court order establishing custody, but the
parents have agreed the student will live with the noncustodial parent.
c. The court order grants the parents joint custody. With joint physical custody, the student could establish legal settlement in either of the school districts in which his parents reside. In this situation, the parents can agree upon the parent with whom the student will reside for school attendance purposes. It is not required that the student reside with this parent 100% of the time.
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Form I ‐ Continued
3. Where the parent granted custody of the student has abandoned the student.
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Form IIForm II is utilized when the student is residing with a person other than a parent. In the following circumstances, the legal settlement of the student is the attendance area of the person with whom the student is residing. Form II should be used in the following situations:
1. The student has been abandoned by the parent and left in the custody of another person.
2. The student is being supported by, cared for by, and living with some other person. (If the parents are able to support the student but placed the student in the home of another person, or permitted the student to live with another person, primarily for the purpose of attending school in that attendance area, the legal settlement of the student remains with the parent.)
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Form II ‐ Continued3. The student’s parents are living outside the United States due
to educational pursuits or a job assignment; they maintain no permanent home in any school corporation in the United States; and they have placed the student in the home of another person.
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Form III
Form III is utilized where the student’s parents are divorced or separated but live in different public school corporations. The parent with physical custody (or the student, if the student is 18 years of age and competent) can make an election on an annual basis regarding which school corporation the student will attend: the one in which the parent with physical custody lives or the one in which the other parent lives.
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Form III ‐ Continued
• The election must be made not later than fourteen (14) days before the first student day of attendance. The election is good for one school year and must be renewed for any subsequent school years. The student is deemed to have legal settlement where the election is made. Transfer tuition cannot be charged. If no election is made, the student is deemed to have legal settlement in the school corporation where the parent with physical custody resides.
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Records Request
• The definition of parent is found in the FERPA implementing regulation under 34 CFR 99.3.
• "Parent" means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.
• Section 99.4 gives an example of the rights of parents. • An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody, that specifically revokes these rights.
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FAQ on Records Request1. Does the FERPA require a school to keep a parent informed of the child's progress even
though the parent is divorced and living some distance from the child?• No. The FERPA does not require schools to inform parents of student progress whether
the parents are divorced or not.
2. Does the FERPA require a school to provide a parent copies of the record?• Generally, a school is not required to provide parents copies of the record. However, if
the distance is great enough to make it impractical for the parent to visit the school to review the record, the school must make copies of the record and send them to the parent when that parent requests access to the record.
3. May a school charge for copies of records?• Yes. A school may charge a reasonable fee for copying.
4. Does the non‐custodial parent have the right to be informed of and to attend teacher conferences?
• The FERPA does not address conferences for the purpose of discussing student performance. Thus, a school has no obligation under this law to arrange a conference to accommodate the non‐custodial parent. However, if records of conferences are maintained, the non‐custodial parent has the right to see those records.
5. Must the school notify the non‐custodial parent of his/her FERPA rights?• No. The school would be considered in compliance with the law if it notifies only the
parent who has custody of the child.
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FAQ on Records Request ‐ Continued6. Must the school provide the non‐custodial parent the same general notices it provides
the custodial parent?• No. General notices, lunch menus, PTA information, announcement of teacher
conferences, school pictures, and other similar information, are not "education records" as defined by the FERPA. Therefore, schools are not legally required to provide them.
7. Is the school required to honor a parent's "standing request" for access or copies?• No. The FERPA does not require a school to honor a standing request, but the school
may do so if it wishes. If parents wish to obtain information from their child's record on a regular basis, they should submit requests periodically. The school must respond to each request within 45 days.
8. How can a non‐custodial parent get access to record?• Any parent may ask the school for the opportunity to review the record, either by
going to where the record are kept or by requesting copies. The school may ask the parent for some identification.
9. Can the parent with custody prevent the non‐custodial parent from exercising his or her FERPA rights?
• No. FERPA rights are given to both parents. The school may assume that a parent has these rights unless it has evidence to the contrary. The school does not need the permission of the custodial parent to give access to the non‐custodial parent.
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Reporting Abuse/Neglect
• Employees who have reason to believe that a child is a victim of abuse/neglect have immediate obligation to report to Principal.
• Principal has immediate obligation to forward the report to DCS or local law enforcement.
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DCS Interviews
Investigator calls and wants to come into school building to interview student regarding possible abuse in the home.Questions:1. Should you contact parent/guardian?2. What if parent calls a few minutes later and says that they
object?
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Waiver of Rights• Any rights guaranteed to a child under the Constitution of the United States, the Constitution of the State of Indiana, or any other law may be waived only:
• (1) by counsel retained or appointed to represent the child if the child knowingly and voluntarily joins with the waiver;
• (2) by the child’s custodial parent, guardian, custodian, or guardian ad litem if:• (A) that person knowingly and voluntarily waives the right;• (B) that person has no interest adverse to the child;• (C) meaningful consultation has occurred between that person and the child; and• (D) the child knowingly and voluntarily joins with the waiver; or
• (3) by the child, without the presence of a custodial parent, guardian, or guardian ad litem, if:
• (A) the child knowingly and voluntarily consents to the waiver; and• (B) the child has been emancipated under IC 31‐34‐20‐6 or IC 31‐37‐19‐27, by virtue of having
married, or in accordance with the laws of another state or jurisdiction.
Burns Ind. Code Ann. § 31‐32‐5‐1
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• We agree with S.G. that under certain circumstances a police officer's presence in conjunction with a school official's questioning may be significant enough to constitute the type of setting that we would characterize as custodial; however, we conclude that the facts of this case do not satisfy the requirements of a custodial interrogation.
• S.G. v. State, 956 N.E.2d 668, 679 (Ind. Ct. App. 2011)
Other states:Based on our review of the totality of the circumstances in light of the case law discussed above, we conclude Oliver's statements were made during custodial interrogation.
In re K.D.L., 700 S.E.2d 766, 772 (N.C. Ct. App. 2010)
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Juvenile InterrogationsI.C. 31‐30.5‐1‐3EFFECTIVE JULY1, 2015
• Sec. 3. (a) This section applies only to the custodial interrogation• of a juvenile that is:• (1) not conducted at a place of detention; and• (2) conducted at a school or another place where a juvenile is• detained in connection with the investigation.• (b) A statement made during a custodial interrogation described• in subsection (a) is admissible against the juvenile in a felony• criminal prosecution or in a juvenile proceeding only if:• (1) the interrogation complies with Indiana Evidence Rule• 617; or• (2) the interrogation:• (A) is recorded by using audio equipment; and• (B) complies with every requirement of Indiana Evidence• Rule 617, except for the requirement that an electronic• recording be an audio‐visual recording.
Juvenile InterrogationsI.C. 31‐30.5‐1‐4EFFECTIVE JULY1, 2015
• Sec. 4. A law enforcement agency shall retain a copy of a• custodial interrogation of a juvenile recorded under this chapter:• (1) if the juvenile is adjudicated a delinquent child for• committing an act that would be a crime if committed by an• adult, until the juvenile has exhausted all appeals related to• the adjudication;• (2) if the juvenile is convicted of a felony as an adult, until:• (A) the felony conviction is final; and• (B) the juvenile has exhausted all direct and habeas corpus• appeals related to the conviction; or• (3) until a prosecution of the juvenile for a felony is barred by• law.•• Sec. 5. A custodial interrogation recorded under this chapter is• confidential at the discretion of the court.
Presented by Andrew Manna & Seamus Boyce
[email protected]@cchalaw.com
Church Church Hittle & Antrim